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 p.4 #18 · Is it art or pornography? | |
Its not necessarily the photo, its the INTENT of the photo to wit: "To arouse or gratify the sexual desire"
43.25. SEXUAL PERFORMANCE BY A CHILD. (a) In this
section:
(1) "Sexual performance" means any performance or part
thereof that includes sexual conduct by a child younger than 18
years of age.
(2) "Sexual conduct" means sexual contact, actual or
simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals, the anus, or any portion of the female
breast below the top of the areola.
(3) "Performance" means any play, motion picture,
photograph, dance, or other visual representation that can be
exhibited before an audience of one or more persons.
(4) "Produce" with respect to a sexual performance
includes any conduct that directly contributes to the creation or
manufacture of the sexual performance.
(5) "Promote" means to procure, manufacture, issue,
sell, give, provide, lend, mail, deliver, transfer, transmit,
publish, distribute, circulate, disseminate, present, exhibit, or
advertise or to offer or agree to do any of the above.
(6) "Simulated" means the explicit depiction of sexual
conduct that creates the appearance of actual sexual conduct and
during which a person engaging in the conduct exhibits any
uncovered portion of the breasts, genitals, or buttocks.
(7) "Deviate sexual intercourse" and "sexual contact"
have the meanings assigned by Section 43.01.
(b) A person commits an offense if, knowing the character
and content thereof, he employs, authorizes, or induces a child
younger than 18 years of age to engage in sexual conduct or a sexual
performance. A parent or legal guardian or custodian of a child
younger than 18 years of age commits an offense if he consents to
the participation by the child in a sexual performance.
(c) An offense under Subsection (b) is a felony of the
second degree, except that the offense is a felony of the first
degree if the victim is younger than 14 years of age at the time the
offense is committed.
(d) A person commits an offense if, knowing the character
and content of the material, he produces, directs, or promotes a
performance that includes sexual conduct by a child younger than 18
years of age.
(e) An offense under Subsection (d) is a felony of the third
degree, except that the offense is a felony of the second degree if
the victim is younger than 14 years of age at the time the offense is
committed.
(f) It is an affirmative defense to a prosecution under this
section that:
(1) the defendant was the spouse of the child at the
time of the offense;
(2) the conduct was for a bona fide educational,
medical, psychological, psychiatric, judicial, law enforcement, or
legislative purpose; or
(3) the defendant is not more than two years older than
the child.
(g) When it becomes necessary for the purposes of this
section or Section 43.26 to determine whether a child who
participated in sexual conduct was younger than 18 years of age, the
court or jury may make this determination by any of the following
methods:
(1) personal inspection of the child;
(2) inspection of the photograph or motion picture
that shows the child engaging in the sexual performance;
(3) oral testimony by a witness to the sexual
performance as to the age of the child based on the child's
appearance at the time;
(4) expert medical testimony based on the appearance
of the child engaging in the sexual performance; or
(5) any other method authorized by law or by the rules
of evidence at common law.
Added by Acts 1977, 65th Leg., p. 1035, ch. 381, § 1, eff. June
10, 1977. Amended by Acts 1979, 66th Leg., p. 1976, ch. 779, § 1,
eff. Sept. 1, 1979; Acts 1985, 69th Leg., ch. 530, § 1, eff.
Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept.
1, 1994; Acts 1999, 76th Leg., ch. 1415, § 22(b), eff. Sept. 1,
1999; Acts 2003, 78th Leg., ch. 1005, § 4, 5 eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 593, § 1.20, eff.
September 1, 2007.
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